As states such as California, Massachusetts, Illinois, Oklahoma and North Dakota have lessened the ability of its employers to restrict employee mobility through noncompete agreements, some companies have reacted by attempting to tighten such restraints on hourly - and even unpaid - workers. Check out this interesting thought piece on why these efforts are often misguided or short-sighted.
I am pleased to have appeared in Buffalo Business First this week. For a look at the announcement, click here.
Gross Shuman P.C. was founded in 1959 by Gordon R. Gross and Paul Gonson. Irving M. Shuman joined the firm in 1960. For many years, the firm under the name Gross, Shuman, Brizdle & Gilfillan P.C., was led by Peter S. Gilfillan. Gordon, Irv, and Peter shared a vision of providing dedicated, client-centric legal representation at the highest level and that vision continues to guide Gross Shuman P.C. today.
Gross Shuman’s main office is in Buffalo, New York, a place with deep history that’s becoming more vital and dynamic every day. It’s a perfect fit for Gross Shuman, because the city’s balance of traditional values and forward-thinking inventiveness mirrors the firm’s approach to the law.
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The New York State legislature is presently considering outlawing noncompete agreements in certain circumstances. Although New York courts strongly disfavor such covenants against competition, employers may soon be prevented from enforcing such agreements against low-wage workers or employees who were terminated without cause. Presently, an employer may prevent a former employee from competing with that employer, as long as the employer demonstrates a “reasonable” basis for such a restraint. If legislation currently making its way through Albany becomes law, New York employers may be prevented from enforcing such provisions against many employees. Importantly, New York employers may soon be enjoined from enforcing so-called “no poach provisions,” or clauses designed to prevent a competitor from soliciting or hiring another competitor’s talent. New York employers and employees alike should consult with competent counsel experienced with employment restrictive covenants prior to entering into such an agreement to ensure continued compliance with this evolving area of law.
I love running. Actually, I love all kinds of competition. My friends know that I love to celebrate the success of others. Business success. Athletic success. Success in personal relationships. All of it. It's what Buddhists call "mudita," or "sympathetic joy."
I particularly enjoy inspiring stories of people helping other people overcome adversity. That's why I am deviating from the usual legal blog post to share this special story involving a young family, its business, and the importance of focusing on goals.
Lauren Fleshman is a professional runner, an entrepreneur, a wife, and a mom. She's won state championships, NCAA titles, USA Championships and finished as high as 7th in the World (so far). This link to her family's business page is a beautiful reminder that we have the ability to chose to be successful - in athletics, in business, and in life.
I hope you enjoy it.
The Massachusetts legislature has renewed its effort to limit the effect of noncompete agreements on employees. As readers of this page know, state leaders across the country have noticed that California's ban on such restrictive covenants has been a boon to the tech sector and other creative entrepreneurs.
A noncompete agreement is a contract (or clause within a contract) under which one party, usually an employee, agrees not to engage in activities which are similar to the activities of the other party, usually an employer. The purpose of a noncompete agreement is to allow a party to protect its legitimate business against possible unfair competition from the other party. Noncompete agreements allow an employer to provide its employee with valuable resources, including increased salary and access to proprietary information, in order to maximize the employee's value to the employer.
Although disfavored in New York, noncompete agreements remain enforceable. If you are asked to accept a noncompete agreement as a condition of your employment, take a moment to consider a few factors before you sign:
- Are you bringing assets (contact lists, customers, intellectual property, etc.) you developed at a prior job with you to your new employer?
- Is your new employer willing to pay you additional compensation for bringing those assets with you?
- Will you be permitted to utilize the assets you brought to your new employer after your employment ends?
- Does the noncompete agreement provide for additional compensation to refrain from competing after your employment ends (sometimes referred to as "garden-leave" provisions)?
- Will your new employer hire you if you refuse to sign? Is there room to negotiate?
This list of considerations is not exclusive. Anyone asked to enter into a noncompete agreement as a condition of employment should consult with experienced employment counsel before signing. No two employment situations are identical. The enforceability of noncompete agreements is highly fact-dependent in New York. One truth is universal - no one should sign a noncompete agreement in New York without first considering its impact on one's post-employment ability to earn a living.
Effective employers balance employee morale and work efficiency. If you are reading this post, you are probably one of those employers. You want to keep your talent happy. You want to be flexible. You are willing to provide frequent and timely input and feedback. You want to give your employees the resources they need to succeed without tethering them to the office.
In an effort to find and maintain the elusive work-life balance for their employees, many employers increasingly rely on “bring your own device” (“BYOD”) to work policies. BYOD workplaces allow employees to utilize their personal devices to conduct their employer’s business. These devices typically include smart phones, laptop computers, external hard drives, and other hardware capable of transmitting and storing electronic information.
Allowing employees to use personal devices to conduct business has several advantages. In addition to realizing the cost savings in not buying additional equipment for employees, employers can stay in touch with their employees in remote locations. Employees with children can perform essential tasks at home. Commuters can work while in transit.
Before you allow your employees to use their personal devices for work, however, you should recognize that BYOD practices are not without problems. To reduce risk, employers who allow employees to use their own devices must have clearly written BYOD policies. Your BYOD policy should be narrowly tailored to the specific circumstances of your business, yet broad enough to protect your confidential and proprietary information – all without unnecessarily infringing on your employees’ legitimate expectations of privacy.
To strike this balance, an employer’s BYOD policy should clarify that:
· communication sent over the employer’s server is subject to monitoring by the employer;
· personal devices will be configured by the employer to work with the employer’s information systems;
· no employer information may be stored on any device or platform (hardware or cloud-based) without prior approval by the employer;
· personal devices will be password-protected;
· passwords will be changed periodically;
· the employer has the right to over-ride employees’ password with “administrator” passwords;
· personal devices will have “lock” features triggered by inactivity;
· employees consent to complete wiping of data in the event of a lost device;
· non-work related communication using the employer’s information systems is prohibited and may result in disciplinary action;
· employees must return all employer information in any format, including any information stored on any personal devices, to the employer upon separation;
· employees are prohibited from using their devices to violate the employer’s policies, including any anti-harassment policies, and are otherwise prohibited from participating in any unlawful activity using the employer’s resources;
· in keeping with the Fair Labor Standards Act (“FLSA”) and any related wage/hour laws, non-exempt employees are required to record and report any out-of-office and work-related activity conducted remotely in excess of forty (40) hours per week.
In addition, a BYOD policy should specify that any employee who uses his or her personal device in violation of the BYOD policy recognizes that such a violation:
· constitutes potentially irreparable harm to the employer;
· may not be remedied by a monetary award of dollar damages;
· will result in the employee consenting to the imposition of injunctive relief, including, without limitation, a court of competent jurisdiction issuing a temporary retraining order and/or preliminary injunction enjoining and retraining the employee from taking any further action against the interests of the employer;
· will result in a forfeiture of the device used and a review of the device by the employer, the employer’s legal counsel, or a court of competent jurisdiction to examine to extent of the breach of the BYOD policy.
As with most policies, it is wise to have an attorney with relevant legal experience in the BYOD space draft a policy narrowly tailored to needs of your business. If you allow your employees to conduct your business using their personal devices, contact an attorney and implement a written BYOD policy as soon as possible.